State v. Gonzales

Citation110 N.M. 218,794 P.2d 361,1990 NMCA 40
Decision Date27 March 1990
Docket NumberNo. 10736,10736
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Roberto GONZALES, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

MINZNER, Judge.

Convicted of larceny and conspiracy to commit larceny, defendant appeals. The issues on appeal are (1) whether defendant was denied due process of law by a delay of eighteen months between the date he was arrested and the date of indictment; (2) whether the district court erred in reconsidering its initial decision to grant defendant's motion to dismiss; and (3) whether in reconsidering the initial decision, the district court erred in reviewing the contents of a calendar notice issued by this court in another case. See SCRA 1986, 12-210. We affirm.

BACKGROUND.

On February 17, 1986, around 3:30 p.m., four tires were taken from a tire store. The manager, John Waldschmidt, testified that he chased the two thieves, who sped away in a green pickup truck. Waldschmidt also testified that during the chase he got a good look at the driver as the truck came toward him. Waldschmidt followed the truck until the driver abandoned it. Waldschmidt obtained the license number on the truck and reported it to the police. The police traced the number and determined that the truck was owned by Roberta Gonzales, defendant's daughter. Later, Waldschmidt positively identified defendant from a photo array.

Defendant admitted using the truck on the day of the crime. He testified that he was with three friends drinking beer in a lounge parking lot from around 10:00 a.m. until around 1:00 or 2:00 p.m., when a police officer came by and told them they could not drink there. Subsequently, defendant said that he and his friends moved across the street to where one of his friends lived and continued drinking until around 5:00 p.m. Defendant named the friends: Felipe Silva, Stevie Griego, and Frank Flores. Apparently Stevie Griego's name is actually Stevie Romero. Defendant testified that when he left his friend's house, the truck was no longer where he had parked it and, thinking that his daughter had picked it up, he went home.

On February 19, 1986, Gonzales was arrested. The arresting officer, Officer Calderon, testified that around the time of the arrest, Gonzales told him that he was with Felipe Silva and a person named Dan. This information was noted in the police report. The next day, after being incarcerated for less than twenty-four hours, defendant was released pending investigation.

Defendant was indicted on August 13, 1987. On October 28, 1987, the district court heard defendant's motion to dismiss based on prejudicial preindictment delay. Defendant testified at the hearing that all three of his friends had died. Felipe Silva died in February 1987, approximately one year after defendant's arrest, and Stevie Romero died three months later. No date was given for Frank Flores' death. After the hearing, the court dismissed the indictment with prejudice on the basis of the sixth amendment right to a speedy trial. See State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct.App.1986).

The state submitted a timely motion to reconsider, to which it attached a calendar notice from this court proposing summary reversal in State v. Fimple, Ct.App. No. 10,280 (Filed January 7, 1988), which involved similar facts. The summary calendar notice proposed summary reversal on the basis that sixth amendment speedy trial rights are not triggered solely by arrest. See also State v. Sanchez, 108 N.M. 206, 769 P.2d 1297 (Ct.App.1989). On December 18, 1987, the district court entered an order granting the state's motion. Subsequently, in March, the court entered an order setting the case for trial. Following his conviction, defendant filed a timely notice of appeal.

1. DENIAL OF DUE PROCESS.

Defendant has abandoned his sixth amendment argument. See id. Rather, he relies on his rights to due process. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Defendant argues that he was denied due process by the preindictment delay because his alibi witnesses all died prior to the date he was indicted, and the reasons advanced by the state for the preindictment delay are insufficient to outweigh the prejudice caused by the delay. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion. The state argues that defendant has argued for the wrong test and that the test he advances is essentially the same test as the speedy trial inquiry under the sixth amendment. Thus, we first discuss the question of what is the relevant test.

a. The Relevant Test.

Although defendant cited to the relevant provisions in both federal and state constitutions, we do not understand his claim to be that the New Mexico state constitution should be interpreted to provide greater rights than are available under the federal constitution. Indeed, our supreme court has indicated that the issue of whether defendant has been denied his right to due process under the fourteenth amendment of the United States Constitution and the New Mexico Constitution, article II, Section 18 by reason of preindictment delay involves the same test. See State v. Duran, 91 N.M. 756, 581 P.2d 19 (1978). This court is bound by state supreme court precedent. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Thus, we apply a single due process test under both constitutional provisions.

The test to which Duran refers arises out of Marion. In Marion, the Supreme Court apparently articulated a stringent test: the Due Process Clause of the fifth amendment would require dismissal of the indictment if it were shown at trial that the preindictment delay caused substantial prejudice to the defendant's rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. See A. Lite, The Pre-Accusation Delay Dilemma, 10 Seton Hall L.Rev. 539 (1980). Subsequently, in Lovasco, the Court expressed the Marion due process inquiry by stating that courts are required to consider the reasons for the delay as well as prejudice to the accused.

In Lovasco, the Court held that the defendant must demonstrate actual prejudice. The reason for delay in Lovasco was the government's ongoing investigation, which the Court held was legitimate. The Court noted that investigative delay is fundamentally different from delay which is undertaken by the government solely to gain a tactical advantage. From the opinion it is difficult to ascertain whether the Court intended to state a conjunctive test in which prejudice and intentional delay to gain a tactical advantage are the two components or whether the Court compared investigative delay to bad faith delay for another reason. Consequently, Marion and Lovasco left unclear whether the two elements, actual prejudice and intentional delay by the government for an improper purpose, are to be applied in a conjunctive or a disjunctive manner. See generally United States v. Mays, 549 F.2d 670 (9th Cir.1977) (comparing the textual arguments in support of the conjunctive, as well as the disjunctive, interpretation of Marion ). Subsequent discussion in recent cases by the Supreme Court on the subject, however, lends some support to the view that the present court favors a conjunctive two-prong test. United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299-300, 81 L.Ed.2d 146, 156-57 (1984); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), however, the Court rejected the government's argument that the Lovasco rationale was applicable to an analysis of the government's delay in filing a civil proceeding for forfeiture of currency and stated that "Lovasco recognized that the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure that an indictment is well founded." Id. at 563, 103 S.Ct. at 2011-12, 76 L.Ed.2d at 152.

For a period of time, there was uncertainty at the level of the federal courts of appeal. See generally Lite, supra, at 541-53.

Some circuits have read the Marion test conjunctively, determining that a dismissal is authorized on due process grounds upon a showing by the defendant of actual prejudice to his defense and that the government's purpose for the delay was to gain an unfair tactical advantage. Other circuits which have applied the Marion test disjunctively, that is, as requiring either substantial actual prejudice or intentional governmental delay to gain a tactical advantage, have adopted a balancing approach similar to the Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] test, in which courts weigh three factors--the length of the delay, actual resultant prejudice to the defendant, and the government's reasons for the delay. [Emphasis in original; footnote omitted.]

Id. at 549-50.

Many federal courts of appeal now appear to apply a conjunctive, two-prong test in which the defendant must prove the government's intentional delay to gain a tactical advantage as well as prejudice. See, e.g., United States v. Benson, 846 F.2d 1338 (11th Cir.1988); United States v. Comosona, 848 F.2d 1110 (10th Cir.1988); United States v. Ismaili, 828 F.2d 153 (3rd Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988); United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir.), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987)...

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